Cook v. Foley

• Decision Date: 13 February 1907
• Docket Number: 2,224.
• Citation: 152 F. 41
• Parties: COOK et al. v. FOLEY et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 41

COOK et al. v. FOLEY et al. ^[1]

No. 2,224.

United States Court of Appeals, Eighth Circuit.

February 13, 1907

H. V Mercer (George P. Wilson and George C. Greene, on the brief) for plaintiffs in error.

Harris Richardson, for defendants in error.

Before VAN DEVANTER, Circuit Judge, and CARLAND and POLLOCK District judges.

POLLOCK District Judge.

The important and controlling facts in this case, as gleaned from the record, are:

Defendants in error (hereinafter called 'defendants') were the original contractors with the Algoma Central Railway Company (hereinafter called the 'railway company') for the grading of a line of road in Canada. On the 30th day of September, 1901, the defendants received from plaintiffs in error (hereinafter called 'plaintiffs'), the following proposition to grade a portion of the road.

'St. Paul, Sept. 30, 1901.

'Messrs. Foley Bros., Porters & Whalen, Contractors.

'Gentlemen: We propose to do all the work on the Main Line near Batchewana of the Algoma Central Ry. from Station 885 to Station 1065 at the following prices:

Earth excavation, hauled 500 feet and under, per cu. yd ....... $ 25

Loose rock excavation, hauled 500 feet and under, per cu. yd ....... 40

Solid rock excavation, hauled 500 feet and under, per cu. yd ..... 1 45

Hard pan excavation, hauled 500 feet and under, per cu. yd ......... 40

Material hauled beyond 500 feet .................................... 01

Clearing per acre ............................................... 38 00

Close cutting per acre .......................................... 35 00

Grubbing per acre ............................................... 75 00

Cedar Box Culverts, $16.00 per M. ft. B. M.

'All work to be done according to the specifications of the Algoma Central Railway Company and to the satisfaction of their engineers, and to be completed by June 30, 1902. If, at any time in your opinion, or that of the engineers of the Algoma Central Ry. Co. there is not sufficient force on the work to complete the same within the time specified, we agree that you may put on what force you consider necessary and charge same to our account.

'Yours truly,

Cook Bros.'

To this proposition defendants replied:

'Messrs. Cook Bros., Contractors:

'Gentlemen: We accept the above proposition and authorize you to commence at once.

'Yours truly,

Foley Bros., Porters & Whalen, 'By W. D. Barclay.'

In accordance with the contract so made, plaintiffs did perform the work of grading the road between the sections named in the contract, and before the commencement of this action received therefor the sum of $70,639.74 for work done by them under the contract, based on estimates made by the engineers of the railway company. Plaintiffs also received the further sum of $8,542.30 for extra labor performed, materials furnished, and money expended for various purposes. Thereafter plaintiffs commenced this action at law to recover a balance of $21,965.78 claimed by them to be due on the contract price for work done under the terms of the contract, and the further sum of $3,206.52 as balance claimed by them to be due for extra work done, materials and money furnished and expended for defendants. The amount thus claimed by plaintiffs for work done in pursuance of the contract was based upon measurements and classifications of the work made by engineers, at their request, more than a year after the completion of their contract.

The petition is in three counts. The first, for balance due under the terms of the contract; second, for the same amount based upon the common (quantum meruit) count; third, for balance claimed for extras furnished, extra work done, materials furnished, and money expended for the benefit of defendants. To this petition defendants answered, admitting the making of a contract with plaintiffs and the performance of the work and labor by plaintiffs under the contract, but alleged at the time of the making of the contract there was in existence certain specifications for the doing of the work which formed a part of the original contract between defendants and the railway company, and that by reference thereto in the contract made with plaintiffs said specifications were adopted and became a part of the subcontract between plaintiffs and defendants. These specifications were set out in the answer in full.

Paragraph 4 of the general provisions applicable to all work done under the specifications provides as follows:

'An approximate estimate will be made at the end of every month during the current month as provided for in the contract, reserving to the contractor the right to inquire into the correctness of the estimate. 15 per cent. of the monthly estimates will be reserved as a reserve fund until final completion of the work as provided for in the contract.'

Paragraph 5 provides:

'Final estimates will be made for the work with reasonable diligence when completely performed, and the engineer reserves the right to reject the whole or any portion of the said work, should it be found to be inconsistent with the specifications. The engineer's measurements and classifications shall be final and conclusive.'

Paragraph 19 provides:

'These specifications are hereby acknowledged, accepted and made a part of this contract.'

The answer further alleged that the engineers of the railway company made a final estimate of the amount of work done by plaintiffs under the terms of their contract and its classification, and in accordance therewith defendants had made full payment to plaintiffs according to the terms of the contract.

As to the third count in plaintiffs' petition, the defendants in their answer pleaded full payment. In reply to this answer plaintiffs pleaded as follows: In the third paragraph admitted the railway company provided specifications substantially as set out by the defendants. In the second paragraph denied these specifications were a part of the contract made by plaintiffs with the defendants, and in the fourth and fifth paragraphs of the reply pleaded as follows:

'Denies that either the said engineer or engineers ever either made or caused to be made measurements of the said work according to the methods and at the times alleged in said answer, or at all; denies that either the said engineer or engineers ever made any estimates of said work except approximate estimates and measurements occasionally made of parts of said work, and alleges that said occasional and approximate estimates and measurements were not made every month or as often as every month, and were never made for the whole of said work, and not made after said work was completed; that neither of the plaintiffs ever had any notice or knowledge of either the time or place of either any estimate or measurement of said work, either approximate, preliminary or final, or otherwise, by either the said engineer or engineers; that neither of the plaintiffs were ever either present or represented at such estimate or measurement; that neither of them ever had any opportunity to inquire into the correctness of any such estimate or measurement, or know whether it was made either fairly or correctly; that the plaintiffs were informed that said approximate and occasional estimates and measurements had been made of parts of said work from time to time, and requested and demanded of the said defendants, and the said engineer and engineers in charge of said work and railway company, that plaintiffs be permitted to have the right to examine such estimates as might be made by said engineer or engineers, and might have copies thereof; that said request was always refused to either examine or see either or any such reports or estimates; that plaintiffs are informed and believe, and upon that information and belief further allege, that, when said approximate and occasional estimates and measurements were made, they were for much less than the work actually performed, and were greatly erroneous as to the classifications; that after the work had been actually performed and said occasional measurements had been made, in so far as they were made, the result of said measurements and the classifications thereon and the estimates based upon said measurements and classifications were, from time to time, by the procurement of the said defendants, willfully and fraudulently manipulated and changed to decrease the apparent amount of work performed by these plaintiffs, and with a view and with a purpose and with the intention of so combining, manipulating, and changing the results of said estimates as to greatly reduce the amount of said work, and to falsely and erroneously classify the same so as to greatly reduce the amount owing from said defendants to these plaintiffs.

'And plaintiffs further allege that within and at a reasonable time after the conclusion of said work plaintiffs duly demanded of said engineers and said defendants that they measure or cause to be measured the said work for a final estimate thereof, and offered to pay one-half of the expense of such measurements, but said defendants refused to do so; deny that said engineer ever either measured or classified said work, either in accordance with the allegations of said answer, or at all; but allege that if said engineer ever either measured or attempted to measure, or ever either classified or attempted to classify, said work, or ever either found, or attempted to find, adjudge, or determine the same, or the rights of these plaintiffs, or the liability of the defendants therefor, that the same was done without either the knowledge or consent of plaintiffs, and without any agreement upon the part of plaintiffs therefor, and without any hearing or opportunity given to plaintiffs to be

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